Pamplin v. Rowe , 100 Ark. 144 ( 1911 )

Hart, J.,

(after stating the facts). It is conceded that the defendant was looking for a fruit farm, and entered into the contract which is the foundation of this action. ■ The proof on the part of the defendant shows that D. K. Dill and J. M. Cope ordered 1,000 Junebud Elberta peach trees, and were to take 500 each. Cope got a card from the nurseryman, saying that he did not have the kind they wanted, and asking if some other kind would do. Soon afterwards Cope received a notice that the trees had come. He told Dill that he would not take them. Dill replied that he would look at them. Later he told Cope that they were nice looking trees. Cope says that he does not know whether Dill took them or not. Other testimony shows that Dill took the trees and planted them on the land he sold to the defendant, Pamplin.

L. A. Grant testified that after Pamplin moved on the place, and the trees had commenced bearing, D. K. Dill got him- to go over there and look at the trees. That he examined the trees and saw they were not Elberta trees. That Dill told him that he had sold the trees to Pamplin for Elberta trees, and that they had proved not to be Elberta trees. That he had to make good to Pamplin, and wanted the company from which he bought them to make good to him.

Other evidence showed that they were not Elberta trees, and that the fruit was worthless for market purposes.

The plaintiff introduced testimony tending to show that Elberta peach trees could be known by their leaves, although the trees were not in fruit. Defendant admits that he examined the trees before he agreed to purchase the land, but states that at that time he could not tell Elberta trees by their leaves; and his testimony in this respect is not contradicted.

D. K. Dill sold the farm with trees on it, which he sold for Elberta trees, a kind which was valuable for market purposes. The defendant wished to buy a fruit farm. The representation was therefore material. Kincaid v. Price, 82 Ark. 20; Matlock v. Reppy, 47 Ark. 148.

The plaintiff introduced testimony tending to show that it could not be known whether the trees were Elberta until they had been set out and had begun to leaf. But the testimony of Cope shows that he told Dill they were not Elberta trees before Dill took them from the nurseryman, and there is no contradiction of his testimony. Hence it must be admitted that Dill either knew they were not Elberta trees when he took them, and when he sold them to Pamplin for Elberta trees; or that he purchased them, set them out and then sold them to Pamplin for Elberta trees in reckless disregard of the fact whether his representations were true or not. It can not be said that he was acting in good faith because the plaintiff introduced testimony tending to show that Elberta trees could not be distinguished from other trees before they put on leaves; for Cope testifies that he told Dill that the trees were not Elbertas before he purchased them.

The number of trees in the orchard, which were represented to be Elbertas, is 400. Without entering into an extended discussion as to the amount of damages suffered by defendant on account of the false representations concerning the orchard, we think a careful consideration of the testimony will place it at $200, and we' so find. Matlock v. Reppy, 47 Ark. 166.

It is also contended by defendant that D. K. Dill made false representations to him as to where the true boundary on one side of the land was situated. It is sufficient answer to this to say that defendant has occupied the land with reference to the boundaries shown him by Dill, and his occupancy has not been disturbed or molested.

The court rendered a personal judgment against the defendant for notes not yet due. This was manifestly an error.

The chancellor properly found that Dill made false representations as to the Elberta trees to induce defendant to purchase his farm, and that the representations were material; but refused to allow damages for want of proof, and for this error, the decree will be reversed.

The decree provided that the land should be sold for the payment of all the notes. In view of the pleadings and the evidence in the case, we do not deem it necessary to decide whether or not this was erroneous. si

The plaintiffs, in their complaint, treat the sale as an executed one. They only ask judgment for the matured notes, and a sale to pay them. This court has already held that, upon the remand of the case, leave may be given to ask for a decree of foreclosure for such notes as are then due. Lund v. May, 73 Ark. 415. By the time the cause is heard again, all of the notes except one for $200, or possibly two, aggregating $400, will be due. The plaintiffs contend in their argument that the lands are worth $3,000. There is no allegation or proof of insolvency on the part of the defendant. The land is the defendant’s home, and his whole defense to the suit was to recoup damages for alleged false representations of the vendor of the land; and this issue has been settled. Hence it is not probable that there will be any necessity for an order for the sale of the land, and a decision of whether the court should decree a sale for an unmatured note is not necessary.

Therefore, the decree will be reversed, and the cause remanded.